Gun control after Heller: Threats and sideshows from a social welfare perspective

What will happen after District of Columbia v. Heller? We know that five justices on the Supreme Court now oppose comprehensive federal prohibitions on home handgun possession by some class of trustworthy homeowners for the purpose of, and maybe only at the time of, self-defense. Perhaps the justices will push fur' ther and apply Heller's holding to state and local governments via the Fourteenth Amendment. But the majority opinion in Heller offered limited guidance for future cases, it did not follow a purely originalist method of constitutional interpretation, nor did it establish a constraining doctrinal framework for evaluating firearms regulation - although the opinion did gratuitously suggest that much existing gun control is acceptable. There is significant room for judges to maneuver after Heller. In the absence of more information from the Supreme Court, we identify plausible legal arguments for the next few rounds of litigation and assess the stakes for social welfare. Based on available data, we conclude that some salient legal arguments after Heller have little or no likely consequence for social welfare. For example, the looming constitutional fight over local handgun bans - an issue on which we present original empirical data - seems largely inconsequential. The same can be said for a right to carry a firearm in public with a permit. On the other hand, less prominent legal arguments could be quite threatening to social welfare. At some point judges might draw on free speech doctrine and presumptively disfavor taxation or regulation targeted especially at firearms. This could have serious consequences. In addition, and perhaps most important, Second Amendment doctrine might deter innovative regulatory responses to the problem of gun violence. The threat of litigation may inhibit useful policy experimentation ranging from personalized firearms technology and the microstamping of shell casings, to pre-market review of gun design, social-cost taxation, gun-owner insurance requirements, and beyond.

Duke Scholars

Author Philip J. Cook Sanford School of Public Policy